When Does a DUI become a Felony in Virginia?

Most Virginia DUIs count as misdemeanors, however in certain cases a judge will instead try them as Class 6 felonies.

Most people know that driving under the influence of drugs or alcohol (DUI) is a serious crime in Virginia.

But did you know it can sometimes result in a felony conviction?

Felony convictions come with a whole host of additional penalties, including heavy fines, prison time, and the permanent loss of certain rights.

In this article, we’ll break down the basics Virginia’s DUI laws, with a particular focus on when a DUI becomes a felony.

However, please keep in mind that any DUI charge is a serious offense that requires the assistance of an attorney.

What is DUI?

man drinking beer while driving.

In Virginia, “Driving Under the Influence of Drugs and Alcohol” (DUI), “driving while intoxicated,” and “drunk driving” are all different names for the same crime.

Specifically, the Virginia Code defines DUI as doing any of the following:

  • Driving with a blood-alcohol content (BAC) of 0.08% or more. Or, for minors under the age of 21, driving with a BAC of 0.02% or more.
  • Driving while significantly impaired by alcohol, drugs, or any other substance.

Note that Virginia courts can consider your refusal to take a breathalyzer test as proof of DUI.

Further, Virginia’s implied consent law mean that, regardless of a DUI charge, refusal to perform a breathalyzer test may result in the immediate suspension of your license.

When does it become a felony?

If a court finds you guilty of DUI, your penalties will depend upon whether or not you have been previously convicted in the past ten years.

In Virginia, a DUI becomes a felony on your third or subsequent offense.

Specifically, the penalties go as follows:

  • On your first offense, you’ll face a mandatory fine of $250. The judge might also assign additional penalties, such as a higher fine, educational classes, or community service. Additionally, the Virginia DMV will suspend your license for one year. If your BAC was 0.15% or higher, your sentence may include a five-day stay in jail as well.
  • Upon a second offense, the maximum fine increases to $500. The Virginia DMV will also suspend your license for three years.
  • Your third and subsequent offenses all count as Class 6 felonies. This means that the maximum fine jumps to $2,500, along with a prison sentence of up to five years. In addition, the DMV may indefinitely suspend or revoke your license.

Remember that a felony conviction also results in the permanent loss of certain rights.

For example, convicted felons cannot vote or own firearms. Employers often require that prior felony convictions be reported as part of the hiring process, which will affect employment prospects.

While in some cases you can petition the governor to restore your voter rights, the loss of your right to own firearms is permanent in Virginia.

Finally, an often overlooked step in the process is that your vehicle may be subject to forfeiture depending on the circumstances of your DUI.

How can I Avoid a Felony DUI Conviction?

car keys on the table full of empty glasses, bottles at party, don't drink and drive concept, post it note for taxi

The best advice, of course, is simply to avoid drinking and driving, especially if you already have two DUI convictions.

These days, with the emergence of apps like Uber and Lyft, getting a ride when you have had a few too many is not difficult.

However, if you’re facing a felony DUI charge there’s one other option you can consider.

In Virginia, courts tend to treat DUI offenses as cut-and-dry convictions.

The court goes by the books where driving with a BAC over a certain threshold always results in certain penalties based on sentencing guidelines.

However, by working with an experienced DUI lawyer, you may be able to reach a plea agreement.

Generally, this will involve pleading guilty to a lesser offense in order to avoid a DUI charge.

For example, you may plead guilty to reckless driving instead of DUI, since reckless driving is a class 1 misdemeanor instead of a felony.

If you find yourself facing DUI charges, there are additional steps you can take as well.

Joining and regularly attending AA or another sober living program can be one step towards showing a judge you are taking the charges seriously.

A knowledgeable attorney will be able to provide you with more information on this type of program.


couple having meeting with lawyer, laptop in frame.

If you have been charged with felony or misdemeanor DUI, contact a lawyer immediately.

By working with an experienced DUI attorney, you can improve your chances of achieving a plea bargain. Failing to do so could result in significant penalties, including prison time and losing your license.

To avoid this, get in touch with legal counsel as soon as you can, well before your court date.

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